Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 762 of 2021 Appellant :- State Of U.P. Through Additional Chief Secretary,Secondary Education And 3 Others Respondent :- Committee Of Management, Ahmadia Hanafia Inter College And Another Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Vashishtha Tiwari
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Vivek Agarwal,J.
Heard Sri Pranab Kumar Ganguli, learned counsel for the State- appellant and Sri Vashishtha Tiwari, learned counsel for the respondents.
Order on Civil Misc. Exemption Application.
Exemption application is allowed.
Appellant is exempted from filing certified copy of the judgment and order dated 06.09.2021 and 16.09.2021.
Order on Appeal.
By this appeal, a challenge is made to the judgment and order dated 06.09.2021 and 16.09.2021.
Learned counsel for the State-appellant submits that learned Single Judge has passed the order on 06.09.2021 followed by the another order dated 16.09.2021 to ensure payment of salary to the petitioner/non-appellant in a writ petition preferred with following reliefs:-
"(a) Issue a writ order or direction in the nature of mandamus directing the respondents to comply with the order dated 28.05.2019 passed by this Hon'ble Cour and ensure payment of salary to the teachers in pursuance of the order passed by respondent no.3 dated 24.05.2019 within stipulated period, otherwise the petitioners would suffer an irreparable loss and injury.
(b) Issue a writ order or direction in the nature of mandamus directing the respondents to pay salary of the teachers appointed in the petitioners institution which are the subject matter of the writ petition no.7572 of 2019, regularly and continuously without any break month to month as and when falls due, within stipulated period.
(c) Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
(d) Award cost of the petition to the petitioners."
Learned counsel for the State-appellant submits that while the writ petition was pending for the prayer quoted above, an order was passed by the respondent-appellant which was also challenged by the petitioner by amending the writ petition. Without adjudication of the impugned order brought on record by way of amendment, the court passed order to grant final relief to the petitioner/non-appellant by interim order.
By interim order, final relief cannot be granted. The Learned Single Judge even recorded a finding for criminal contempt, while exercising jurisdiction under Article 226 of the Constitution of India.
Learned counsel for the appellant has made a reference of the order passed on 14.05.2019 by learned Single Judge in the writ petition. The action of the petitioner was taken to be objectionable and thereby to issue show cause notice, to refer the matter to the Contempt Court, but thereupon no order was passed to refer the matter to the Contempt Court. Without an order by the Contempt Court, the officer could not have been taken into custody. The order dated 16.09.2021 taking custody of the officer finding a contempt while exercising jurisdiction under Article 226 of the Constitution of India is absolutely illegal. Thus, impugned orders may be quashed with appropriate order or direction to the learned Single Judge to hear and decide the matter finally on its merit.
Learned counsel for the petitioner/non-appellant submits that the attitude of the Officer was found Contemptous by the court and accordingly appropriate orders have been passed. Despite the judgment of the Court time and again and approval of the appointment, the petitioner/non-appellant was not paid salary. When the earlier writ petition was allowed, the amount of salary was released for some part. When the entire amount was not released, the petitioner/non-appellant preferred another present writ petition to seek a direction for release of salary. While the writ petition was pending, an adverse order was again passed.
Accordingly the amendment of the petition was allowed followed by appropriate order to ensure compliance of the earlier judgment in favour of the petitioner/non-appellant.
Prayer is accordingly to dismiss the appeal.
We have considered the submissions made by the rival parties and perused the record. It is a fact that the writ petition preferred by the petitioner/non-appellant is still pending consideration before the learned Single Judge. Thus, at this stage, any comment on merit may cause prejudice to either of the parties in the pending writ petition. However, we find reasons to cause interference in the order impugned before us. As and when writ petition is filed with a prayer, the effort of the court should be to adjudicate the issue on merit and in a given case, to pass interim order. It is however settled law that interim order should not be of the nature granting final relief, otherwise nothing would remain at the time of disposal of the case.
In view of the above, this Court finds that the order passed by the learned Single Judge needs interference in view of the relief granted and to take the officer in custody. The Court could have decided the writ petition by appropriate direction and if the court found action of the respondent-appellant to be contemptous in nature than to refer the matter to the Contempt Court. The officer could not have been taken in custody without registering a case for criminal contempt and sending the matter to the division bench.
Accordingly, we set aside the order dated 16.09.2021, while disposing of the appeal with a request to the learned Single Judge to hear and decide the pending writ petition on merit.
The parties are directed to co-operate with the learned Single Judge for final hearing of the case on the next date of hearing.
The Appeal is disposed off with the aforesaid.
Order Date :- 23.9.2021 Ashutosh (Vivek Agarwal, J.) (Munishwar Nath Bhandari, A.C.J.)